Decision Date: 07/31/95 Archive Date:
08/01/95
DOCKET NO. 93-17 175 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim for entitlement to service connection for
bilateral pes planus.
2. Entitlement to an effective date earlier than August 19,
1991, for service connection for bilateral knee disability.
REPRESENTATION
Appellant represented by: Missouri Veterans Commission
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
P. A. Dowdell, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1979 to April
1980.
Service connection for bilateral pes planus was denied by a
rating action dated in August 1980. The veteran was advised
of this determination by a letter dated in August 1980. The
veteran did not complete an appeal with regard to that
determination.
This matter came before the Board of Veterans' Appeals
(hereinafter the Board) on appeal from a March 1992 rating
decision from the St. Louis, Missouri, Regional Office (RO),
which granted service connection for bilateral knee
disability, and assigned separate noncompensable evaluations
for a right knee disability and a left knee disability
effective from August 19, 1991. By rating action dated in
June 1992, the RO assigned separate schedular 10 percent
evaluations for a right knee disability and a left knee
disability effective from August 19, 1991. The appeal also
arises from a September 1992 rating action, which held that
new and material evidence had not been received to reopen
the veteran's claim for service connection for bilateral pes
planus.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that she suffers from pes
planus which had its onset during her period of active
service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that a change in interpretation of law
sufficient to reopen the claim for service connection for
bilateral pes planus has been received.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. Service connection for bilateral pes planus was denied
by a rating action dated in August 1980. This decision was
not appealed.
3. Since that determination, the United States Court of
Veterans Appeals has entered a decision that constitutes a
change in interpretation of law or regulation. Such
interpretation is the functional equivalent of new and
material evidence.
CONCLUSION OF LAW
1. The unappealed August 1980 rating action which denied
service connection for bilateral pes planus is final. New
and material evidence has been received to reopen the
veteran's claim for service connection for bilateral pes
planus. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38
C.F.R. §§ 3.104(a), 3.156, 20.200 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Whether New And Material Evidence Has Been Received To
Reopen A Claim For Service Connection For Pes Planus
The veteran's current appeal involves an attempt to reopen
her claim for entitlement to service connection for
bilateral pes planus. Service connection for bilateral pes
planus was denied by a rating decision dated in August 1980.
The veteran did not appeal that determination.
At the time of the August 1980 RO denial, the evidence
included the service medical records and the report of
Department of Veterans' Affairs (VA) examination performed
in July 1980. The service medical records revealed that at
the time of examination for entrance into service in July
1979, the veteran denied a medical history of foot trouble,
to include any impaired use of the feet. The clinical
evaluation of the feet was abnormal. The examiner's
diagnostic impression included planus grade II pronation,
not considered disqualifying.
In November 1979, the veteran was seen for complaints of
foot pain from walking. The veteran reported that she had
falling arches. The physical examination of the feet
appeared normal. The examiner noted that the veteran had a
profile for no "PT", marching, or prolonged standing until
after her appointment at the Podiatry Clinic. The veteran
was seen several days later, and the examiner recommended
that the veteran should not wear boots. The veteran was
seen again later that same month. The veteran reported to
the examiner that she was not able to wear low quarters
because they hurt her feet. The examiner noted that on
November 26, 1979, the veteran had been given a profile for
no boot wearing for approximately 10 days. The examiner
referred the veteran to a specialist for a decision of
whether she was able to wear low quarters. In December
1979, the veteran was seen by the podiatry clinic for
complaints of arch pain since the 3rd week of basic
training. The veteran reported to the podiatrist that the
use of arch supports made her feet worse. She reported that
she had bilateral patella pain, and that the right foot was
more severe than the left. The physical examination showed
bilateral pes planus. The examiner noted that x-rays of the
feet revealed pronation changes. The examiner's diagnostic
assessment was bilateral pes planus. Orthotics were
prescribed.
In March 1980, the veteran was seen again in the podiatry
clinic for complaints of pain on the ball and heel of the
feet and redness. The podiatrist noted that the orthotics
appeared to fit properly in all respects. The physical
examination revealed no objective findings. The veteran was
seen later that same month for complaints of painful feet
since basic training. The veteran stated that the arch
supports provided no objective relief. The examiner noted
that the veteran was unable to wear low quarters or combat
boots. The veteran was referred to the Medical Board for
examination.
The report of the Medical Board examination performed in
March 1980 noted that the veteran entered active duty in
August 1979 with a P-3 profile and grade II pes planus. The
examiner noted that the veteran began having problems with
her feet during basic training. The examiner indicated that
the veteran was seen by podiatry and orthopedics, but was
unable to wear any military footwear even with arch supports
and medication. X-rays of both feet revealed pes planus
with pronation changes. The diagnosis included pes planus
with pronation changes, symptomatic, not in the line of
duty, existed prior to service. It was recommended that the
veteran be separated from service due to a condition which
existed prior to service.
The initial post service VA examination conducted in July
1980 noted the veteran's complaints of discomfort in both
feet on standing and walking. On physical examination, the
veteran had full range of motion of both feet. In the
standing position, there was pronation of both feet with pes
planus. The veteran was able to stand on her toes and heels
and invert and evert the feet. There was no fixed
deformity. X-rays of the feet were essentially normal. The
bones and joints appeared normal and the soft tissues were
unremarkable. The examiner's diagnostic impression included
pes planus, right and left.
The August 1980 RO denial of service of service connection
bilateral pes planus was based on a determination that the
appellant had a congenital or developmental defect (CDA).
At that time, the rating board was not precluded from using
its own medical judgment.
Since the August 1980 denial by the RO was not appealed to
the Board, it is a final decision that is binding upon the
Board. The laws and regulations that pertain to unappealed
rating decisions are for application. 38 U.S.C.A. §§ 5108,
7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156(a), 20.200,
20.302 (1994). Claims that have been the subject of prior
decisions may be reopened, and the entire evidentiary record
thereafter considered, only upon the submission of
additional evidence which, under pertinent laws and
regulations, is both new and material. 38 U.S.C.A. §§ 5107,
7105 (West 1991); 38 C.F.R. § 3.156(a) (1994). "New"
evidence means more than evidence that has not been
previously included in the claims folder, and must be more
than merely cumulative, in that it presents new information.
Colvin v. Derwinski, 1 Vet.App. 171 (1991). In addition,
the evidence, even if new, must be material, in that it is
relevant and probative. To reopen the claim, there must be
a reasonable possibility that the outcome would differ when
the new evidence is considered in light of all the evidence.
The record reflects that the initial denial of service
connection was based on a very specific reason, the
veteran's pes planus was not a service-connectable condition
(CDA). Our review, at this time reflects that the record
contains no medical opinion to the effect that the appellant
has a congenital defect. The Board also notes that the
statement of the case and the supplemental statement of the
case appear to change the basis for the denial of service
connection from a denial because there was no aggravation,
rather than a determination that the pes planus was not
service-connectable.
Ostensibly, the 1980 determination was based upon 38 C.F.R.
§ 3.303(c). In 1995, the United States Court of Veterans
Appeals, referring to 38 C.F.R. § 3.303(c), determined that
the Board's reliance on the regulation, however, does not
salvage its decision. As the Court held in Browder, 5
Vet.App. at 272, the Board is required to support its
findings under 38 C.F.R. § 3.303(c) with a statement of
reasons or bases that is adequate to enable a claimant to
understand the basis for the Board's decision.... In
addition, the Board may not rely on a regulation as a
substitute for the requirement that it rely on independent
medical opinion. Paulson v. Brown, 7 Vet.App. 466, 469
(1995).
Based upon Paulson and the revised reason for the denial of
service connection, the Board concludes that there is the
functional equivalent of evidence sufficient to reopen the
claim. Furthermore, the change in the reason for the denial
implicitly reopened the claim.
ORDER
The claim for service connection for bilateral pes planus is
reopened.
REMAND
The regional office must conduct de novo review of the issue
of entitlement to service connection for pes planus. Any
determination that the veteran's pes planus is congenital or
developmental must be supported by competent evidence.
Paulson, at 469. Any determination that there was not an
increase in severity (Grade II to Grade III) must be
supported by medical evidence. Any decision that rebuts the
presumption of aggravation must be supported by evidence.
The regional office is referred to Browder v. Derwinski, 1
Vet.App. 204 (1991); Akins v. Derwinski, 1 Vet.App. 228
(1991); Green v. Derwinski, 1 Vet.App. 320(1991).
The earlier effective date issue is held in abeyance.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
IN REGARD TO THE NEW AND MATERIAL ISSUE, THE FOLLOWING
APPLIES: NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. §
7266 (West 1991), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or
benefits, sought on appeal is appealable to the United
States Court of Veterans Appeals within 120 days from the
date of mailing of notice of the decision, provided that a
Notice of Disagreement concerning an issue which was before
the Board was filed with the agency of original jurisdiction
on or after November 18, 1988. Veterans' Judicial Review
Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal
by the Board of Veterans' Appeals.
IN REGARD TO THE REMAINING ISSUES, THE FOLLOWING APPLIES:
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38
C.F.R. § 20.1100(b) (1994).
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